PEOPLE v. CHARLES (2006)

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered April 27, 2004, convicting him of burglary in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 After a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), the People satisfied their initial burden by demonstrating that the showup identification procedure was “ reasonable under the circumstances” as it was conducted “in close geographic and temporal proximity to the crime” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   Moreover, the People “ produc[ed] some evidence relating to the showup itself ․ demonstrat[ing] that the procedure was not unduly suggestive” (People v. Ortiz, supra at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337), and that the showup was conducted under circumstances which were “not so unnecessarily suggestive as to create a substantial likelihood of misidentification” (People v. Duuvon, 160 A.D.2d 653, 559 N.Y.S.2d 270, affd. 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654;  see also People v. Hughes, 287 A.D.2d 872, 732 N.Y.S.2d 122).   Contrary to the defendant's contention, the identification procedure in this case was not rendered unduly suggestive merely because the defendant was handcuffed at the time that he was displayed to the complainant (see People v. Gil, 21 A.D.3d 1120, 803 N.Y.S.2d 634;  People v. Armstrong, 11 A.D.3d 721, 722, 783 N.Y.S.2d 134;   People v. Burns, 133 A.D.2d 642, 519 N.Y.S.2d 751;  see also People v. Pierre, 2 A.D.3d 461, 767 N.Y.S.2d 822;  People v. Brisco, 292 A.D.2d 626, 741 N.Y.S.2d 50, affd. 99 N.Y.2d 596, 758 N.Y.S.2d 262, 788 N.E.2d 611;  People v. Dennis, 125 A.D.2d 325, 509 N.Y.S.2d 58).

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as the burglar beyond a reasonable doubt (see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560;  People v. Regan, 11 A.D.3d 640, 782 N.Y.S.2d 683;  People v. Gillette, 8 A.D.3d 496, 778 N.Y.S.2d 317).   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant's contention that the evidence was legally insufficient to sustain his conviction for criminal possession of stolen property in the fifth degree is unpreserved for appellate review (see People v. Santos, 86 N.Y.2d 869, 870, 635 N.Y.S.2d 168, 658 N.E.2d 1041;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4;  CPL 470.15[2] ).   In any event, the evidence was legally sufficient to establish the defendant's guilt of this crime beyond a reasonable doubt based on his recent and exclusive possession of property following its theft, and his conduct in resisting arrest (see People v. Cintron, 95 N.Y.2d 329, 332, 717 N.Y.S.2d 72, 740 N.E.2d 217;  People v. Zorcik, 67 N.Y.2d 670, 671, 499 N.Y.S.2d 674, 490 N.E.2d 541;  People v. Derrell, 6 A.D.3d 625, 626, 774 N.Y.S.2d 805;  People v. Sharland, 111 A.D.2d 479, 480, 488 N.Y.S.2d 865).

The sentence imposed was neither unconstitutional (see People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 913;  People v. Clark, 176 A.D.2d 1206, 576 N.Y.S.2d 704) nor excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.